Fluhart Collieries Co. v. Meek

Court of Appeals of Kentucky

Fluhart Collieries Co. v. Meek

183 S.W. 469, 169 Ky. 138, 1916 Ky. LEXIS 660

CourtCourt of Appeals of Kentucky

DecidedMarch 14, 1916

StatusPublished

Cited by1 cases

This text of 183 S.W. 469 (Fluhart Collieries Co. v. Meek) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fluhart Collieries Co. v. Meek, 183 S.W. 469, 169 Ky. 138, 1916 Ky. LEXIS 660 (Ky. Ct. App. 1916).

Pincite

Opinion

[139]*139Opinion op the Court by

Judge Carroll

Affirming.

This is the second appeal of this case. The opinion on the first appeal may be found in 160 Ky., 127. On the former appeal the court, after stating the facts fully, said that the plaintiff made out a case that entitled him to go to the jury, but the judgment was reversed for errors in the instructions. On a retrial of the case there was again a judgment in favor of the plaintiff, followed by this appeal.

It is urged as a ground for reversal that the plaintiff was permitted to introduce evidence of negligence not covered by the negligence charged in the petition. But we think, after an examination of the petition and the evidence, that the petition authorized the admission of the evidence' complained of. The plaintiff did not offer any evidence as to acts of negligence that were not embraced by the charge of negligence contained in his petition.

. On the trial of the case, the defendant contended that it was a violation of its verbal rules for miners to “kick” the machines, and to rebut this contention by showing that it was the custom in the mine for miners to move their machines by “kicking,” miners were permitted to prove this custom, and this evidence, we think, was competent. It is very well settled that'the master cannot defeat a recovery on account of violations of rules promulgated by him if it is the custom among the servants to violate them, with his acquiescence. But, aside from this, the evidence on the subject of the rules is not satisfactory. .

On the trial the court gave the instructions that were directed to be given in a former opinion, and, of course, no complaint could be made or is made of the action..of the court in giving instructions.

It is further complained that the verdict is excessive, and for this reason the judgment should be reversed. The damages are, perhaps, something larger than should have been assessed, but are not so flagrantly excessive as to justify us in’interfering with the finding of the jury.

No error affecting the substantial rights of the appellant is found in the record, and the judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

[139]*139Opinion op the Court by

Judge Carroll

Affirming.

This is the second appeal of this case. The opinion on the first appeal may be found in 160 Ky., 127. On the former appeal the court, after stating the facts fully, said that the plaintiff made out a case that entitled him to go to the jury, but the judgment was reversed for errors in the instructions. On a retrial of the case there was again a judgment in favor of the plaintiff, followed by this appeal.

It is urged as a ground for reversal that the plaintiff was permitted to introduce evidence of negligence not covered by the negligence charged in the petition. But we think, after an examination of the petition and the evidence, that the petition authorized the admission of the evidence' complained of. The plaintiff did not offer any evidence as to acts of negligence that were not embraced by the charge of negligence contained in his petition.

. On the trial of the case, the defendant contended that it was a violation of its verbal rules for miners to “kick” the machines, and to rebut this contention by showing that it was the custom in the mine for miners to move their machines by “kicking,” miners were permitted to prove this custom, and this evidence, we think, was competent. It is very well settled that'the master cannot defeat a recovery on account of violations of rules promulgated by him if it is the custom among the servants to violate them, with his acquiescence. But, aside from this, the evidence on the subject of the rules is not satisfactory. .

On the trial the court gave the instructions that were directed to be given in a former opinion, and, of course, no complaint could be made or is made of the action..of the court in giving instructions.

It is further complained that the verdict is excessive, and for this reason the judgment should be reversed. The damages are, perhaps, something larger than should have been assessed, but are not so flagrantly excessive as to justify us in’interfering with the finding of the jury.

No error affecting the substantial rights of the appellant is found in the record, and the judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

183 S.W. 469, 169 Ky. 138, 1916 Ky. LEXIS 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fluhart-collieries-co-v-meek-kyctapp-1916.

Opinion

Related

Cite This Page — Counsel Stack